An underlying issue across disputes regarding highly technical matters, such as defective construction work, a delay claim in an oil exploration agreement, or a technical disagreement regarding software development, is that whoever determines the outcome of the dispute has to understand not only the law, but the engineering or technical concepts as well. Litigation and arbitration in Oman overcome this issue using different methods. Litigation allows referring technical questions to an appointed expert who drafts a report to be considered by the judge, while arbitration allows the parties to appoint a technical expert to sit on the tribunal itself, as one of the individuals actually resolving the dispute.
Trial by Expert Report: The Court Method
According to article 82 of the Law of Evidence in Civil and Commercial Transactions, the court is permitted either on its own motion or at the request of a party to call in an expert to investigate a certain matter or give an opinion on a specialised or technical question. Article 103 explicitly stipulates that the opinion of the expert does not bind the court, meaning that the role of the expert remains advisory. Articles 101 and 104 give the parties the means to discuss, object to, or request an additional or substituted report.
While the court may select an expert from the lists compiled by the Ministry of Justice and Legal Affairs, the court is not bound by this list and can use an expert agreed by the parties.
The Expert is the Decision-Maker: The Arbitration Method
The Law of Arbitration in Civil and Commercial Disputes (Royal Decree 47/97 does not require an arbitrator to be a lawyer or a judge and gives the parties total control regarding the number of arbitrators and method of selection. Pieced together, this means that the parties may place a construction project manager, an oil and gas engineer, or a software developer directly as an arbitrator on the tribunal and not as an expert witness.
Furthermore, even where a tribunal appoints its own expert, article 36(4) still permits each party to bring in their own expert to directly respond to said report in a hearing rather than a written objection filed for a judge to weigh later.
Which Path to Take?
When it comes to a contract where the dispute is of a technical nature instead of being purely legal, it is important to consider the importance of involving a subject matter expert in the actual decision-making process of the outcome.
If the technical expertise is very significant to understanding the issues at hand and resolving the dispute, using arbitration instead of litigation can be very useful, since the arbitration clause can explicitly stipulate the qualifications and criteria for the arbitrator or arbitrators who will resolve the dispute, which the parties can agree at the time of drafting the contract for the underlying deal.
Conclusion
Both litigation and arbitration have their approaches for dealing with matters of a highly technical nature. The courts can refer the matter to an expert who prepares an advisory report, while arbitration gives the parties the autonomy to select a subject matter expert as a member of the arbitral tribunal if they wish.The parties to the dispute need to weigh the pros and cons of each approach and make a conscious decision of the path they wish to take by drafting a clear and explicit dispute resolution clause in their contracts.
